PART 1 INTENTIONAL TORTS TO THE PERSON Battery (1) Direct contact (2) Physical interference with the person (3) Accompanied by fault: intentional or recklessly indifferent in bringing it about moral intent is irrelevant actionable per se there needn t be actual harm caused context and consent very important Direct contact If people are acting out of compulsive necessity, battery will be attributed to person who started original chain Scott v Shepherd [1773] Shepherd threw a firecracker, which set off a train of events, eventually landing on Scott s stall Ricochet can constitute direct contact McHale v Watson (1964) two children playing; Watson (12 years) threw a metal rod which ricocheted off tree and hit McHale in the eye, causing damage Contact must be direct rather than consequential Reynolds v Clarke (1726) a log thrown at someone versus a log placed on the road (direct and indirect contact) Fault There is no need for hostility in an action for battery Boughey v R (1986) Boughey killed woman but claimed it was accidental and performed for sexual satisfaction Context is highly significant; there is an implied consent to contact in everyday life Brian Rixon v Star Pty Ltd (2001) Rixon was tapped on shoulder by casino security guard who then asked to wait in a room for an hour and a half Assault (1) Direct act by the defendant (2) Directly produces apprehension of an imminent battery in the mind of the plaintiff (3) Must be intention to cause apprehension Actionable per se needn t be actual harm caused Apprehension It doesn t matter whether there is an intention to actually commit the battery Brady v Schatzel [1911] woman aimed an unloaded gun at a man and threatened him The effect on the mind is the material factor in an assault, the apprehension of imminent violence McPherson v Beath (1975) Students circle around a lecturer at Flinders University in order to intimidate him! If the plaintiff is especially timid, assault will still occur where plaintiff knows of this disposition A completed battery is not necessary and there must be the means to carry the threat into effect Stephens v Myers (1830) turbulent parish meeting where man was ejected and came to chairman with clenched fist but was restrained by others; held liable in assault 1
Words alone can constitute assault Read v Coker (1853) Read owed rent; Coker ordered him off the premises and Read refused; Coker ordered some employees to see him off the land; they surrounded him and threatened to break his neck A conditional threat can still constitute assault Police v Greaves [1964] Police responded to a domestic call; Greaves held his knife at the police and said if they didn t leave he would stab them Actions can negate an apparent assault Tuberville v Savage (1669) if it were not assize time I would not take such language from you Words can remove ambiguity from actions Fogden v Wade [1945] man following woman made sexual comments and then advanced on her If there is ambiguity there can be no assault Innes v Wylie (1844) police officer stood outside a room guarding exit There must be an intention to create apprehension Brian Rixon v Star Pty Ltd (2001) Direct act Phone call could constitute an assault, but not generally Barton v Armstrong [1969] series of threats made over telephone coercing plaintiff to sign deed or life would be taken! NOTE: in the age of modern communications, this rule could easily be different today The effect on the victim s mind is the material factor in determining directness Zanker v Vartzokas (1988) man offered young woman a ride in van; man then asked for sexual favours and girl refused; man said if she didn t he d take her to his mates house and he d fix her up! Continuing fear of battery represents ongoing immanency; doesn t matter if the battery actually wasn t about to take place False imprisonment (1) Direct, voluntary act (2) Total deprivation of free movement (3) Without lawful justification Actionable per se Unlawful restraint is dependant on the facts of the specific case The onus of proof for lawful justification is on the defendant Direct act The act which restrains need not be physical; fear of authority are sufficient to constitute total restraint Symes v Mahon [1922] police ordered man to go to Adelaide by train; had mistakenly identified him as a suspect; was not handcuffed or physically restrained during the entire procedure; held to be totally imprisoned Restraint need not be physical; fear and authority are sufficient to constitute total restraint Myer Stores v Soo [1991] policemen and Myer employee blocked Soo and escorted him to a back room for questioning; held to be false imprisonment Total restraint Restraint will not be total where there is a reasonable escape route Bird v Jones (1845) public road closed for boat race; man wanted to pass but police would not let him; could have entered by other means Where the conditions of entry are clear, then people who enter an area agree to those conditions and are not necessarily falsely imprisoned despite having free movement restricted Robinson v Balmain New Ferry Co Ltd [1910] man entered turnstile for $1 but missed his 2
ferry; wanted to leave but didn t want to pay exit fee; refused exit Authority to restrain There may be legislative authority to restrain Rixon v Star Pty Ltd (2001) Cannot restrain in order to pay a bill Sunbolf v Alford (1838) Liability for false imprisonment Anyone who directed the imprisonment, was a party to it, or gave oral or written instructions directing the imprisonment is liable Maine v Townsend (1883) FACTS Sufficient nexus between defendant s actions and plaintiff s false imprisonment Ruddock & Others v Taylor (2003) Taylor s visa was cancelled on two separate occasions; there was deemed to be a sufficient nexus It does not matter if the defendant is not aware of false imprisonment Murray v Minister of Defence [1988] for a period, the plaintiff was in detention in her house despite not being aware of it; was held to still be falsely imprisoned Defences Types Self-defence Consent * Mistake is generally not a defence Self defence Self-defence must be reasonable and necessary in the circumstances; there is a legal right to defend oneself Fontin v Katapodis (1962) Fontin wrongly accused Katapodis of not paying for goods; Katapodis broke wooden t-square on Fontin s shoulder; Fontin threw a shard of glass Consent There is an implied consent to everyday contact Collins v Wilcock [1984] a police women took hold of a woman s hand to stop her walking off; woman scratched police woman; police women held to have battered woman There is also implied consent to contact in the sporting arena, including some contact slightly outside of the rules of the game; does not extend to physical violence or where there is intent to cause bodily harm Giumelli v Johnston (1991) in a football game, defendant hit plaintiff with raised elbow! Also McCracken v Melbourne Storm Rugby League Football Club [2005] two rugby players tackled McCracken and threw his head into the ground; was held to be beyond the level of consent implied in the sporting arena Mistake Mistake is generally not a defence; there is strict liability in torts (culpability regardless of intent) Cowell v Corrective Services Commission (1988) incorrect incarceration Damages 4 types (1) Compensatory compensate for actual damage or injury (2) Aggravated compensation for injured feelings or outrage (3) Exemplary indicates disapproval of defendant s conduct (4) Nominal no real damages but awarded to recognise wrongfulness of defendant s actions 3
NEGLIGENCE (1) DUTY OF CARE Actions in negligence Physical harm Nervous shock (mental harm) Property damage Pure economic loss Test Objective what a reasonable person would have done or foreseen Two levels of enquiry (1) Issue of law is this the kind of situation in which a duty can exist? (2) Does there exist a duty on the facts of the case? Physical harm Reasonable foreseeability test Tabet v Gett [2010] affirmed neighbourhood principle in Donoghue v Stephenson (1932) Is it reasonably foreseeable that the defendant could be harmed if I act in this way?! If yes a duty is owed It is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence Chapman v Hearse (1961) Chapman crashed into car and man flew out; doctor stopped on road to help with car crash victim; was subsequently hit by Hearse; Chapman owed a duty of care as the consequence was of the general character that could be expected! The precise sequence of events need not be foreseen, only that some harm may occur NO Civil Liability Act 1936 (SA) for physical harm Established duty categories Duties of law Employer/employee Koehler v Cerebos (2005) Doctor/patient Rogers v Whitaker (1992) Driver/passenger Cook v Cook (1986); Imbree v McNielly (2008) Prisoner/prison authority New South Wales v Bujdoso (2007); New South Wales v Godfrey [2004] Occupier/invitee Neindorf v Junkovic (2005); Hargrave v Goldman (1963) Hotel/patron Spedding v Nobles (2007) Parent/child Smith v Leurs (1945); Robertson v Swincer (1989) If the specific facts fall outside of the established duty categories in law, the go to the facts Mental harm Is plaintiff eligible for mental harm damages? s 53! Damages may only be awarded if injured or a parent, spouse or child of a person injured, killed or endangered If yes, then there must be a recognizable psychiatric illness If yes, then go to s 33! Reasonably foreseeable? (Normal fortitude test) If yes, then consider circumstances of the case 4
NEGLIGENCE (2) STANDARD OF CARE Definition At the breach stage we are asking ourselves to what standard the defendant ought to have performed their duty if they have failed to meet that standard then they are said to have breached their duty of care Test Objective test, which takes into account particular characteristics and skills, but NOT changed for individual idiosyncrasies Question of FACT, and does not constitute a binding precedent Was there a reasonable response to a reasonably foreseeable risk? Note s 31 basic standard of care S 32 (what ought to have been done): How to determine what ought to have been done, that is begin with s 32(1), and ask all of these questions! S 32(1)(a) (foreseeable harm): Yes AND! S 32(1)(b) (not insignificant): Yes, then:! S 32(1)(c) (what would a reasonable person do?): How do we determine this?! By addressing the calculus of negligence now given legislative form in s 32(2) 1) Probability Vairy v Wyong Shire Council (2005) not too far fetched or fanciful, not insignificant 2) Gravity Romeo v Conservation Council of the Northern Territory (1998) 3) Burden of adequate precautions Romeo; Wyong Shire Council; Doubleday v Kelly [2005] 4) Social utility Harris v Bulldogs Rugby League Club [2006] searching of bags toss time consuming; E v Australian Red Cross Society (1991) blood loss too great Not insignificant Assessment of the risk is made with the knowledge AT THE TIME OF THE EVENT (not with benefit of hindsight) Higher order inquiry than not far-fetched or fanciful Was the injury foreseeable, NOT the particular manifestation Must be judged from the perspective of the defendant Reasonable person The hypothetical person whose behaviour sets that standard of care must be endowed with at least some of the characteristics of the defendant! The child! Childhood is not an idiosyncrasy this is an objective test, looking to a characteristic of humanity at his stage of development and in that sense normal... Appealing to a standard of ordinariness to an objective and not a subjective standard McHale v Watson (1966) o E.g. Zanner v Zanner [2010] child parking car in garage hits mother the standard to be expected was of an 11 year old child who was to drive the vehicle over a distance of three to four meters on private property into a carport in circumstances where, to the knowledge of the respondent, he had performed that manoeuvre on five or six previous occasions without mishap o NOT a reasonable adult driver! The mentally handicapped 6